dissenting: Slander was not indictable at common law in England, and was not made so in North Carolina until the enactment of the statute of 1879. Bev., sec. 3640. We are not advised whether, by an act of Parliament, it is made criminal in England. We are, therefore, without any direct authority based upon decisions declaratory of the common law, in regard to the liability of the husband to indictment for slandering his wife. The statute under which defendant is indicted declares that: “If any person shall” etc.“to destroy,” etc., and in conclusion: "Every person so offending ’’ etc. This language is not open to construction or interpretation. There can be no possible doubt that, unless there be some controlling reason to the contrary, the Court must enforce the statute as it is written. We have no power to write exceptions into it,, unless manifestly necessary to effectuate an intention of the Legislature contrary to the plain and well settled meaning of the language used by it. I concede that the words “any person” do not include suchpersons as are incapable of committing the crime, as are doli incapax, either for want of understanding or immature age. This, however, must be made to appear upon plea of not guilty and not by motion to quash. No such question arises here. We are ashed to find a legislative intention to exclude the husband notwithstanding the comprehensive language used. This contention is based upon the proposition that, by the common law, the husband was not liable to indictment for slandering his 'wife. The fallacy of the contention, to my mind, arises out of the assumption of the fact that such was the common law in this State, at the time the statute was enacted. There is no suggestion that, notwithstanding the common law, the Legislature had not the power to include the husband. The argument is that we must find that it did not intend to do so, because, in the absence of lan*502guage expressly changing the common law, we must say that .it was not so intended. Without conceding that .the rule of ■construction invoked would carry us so far, I do concede that the rule is correctly stated in the opinion of Mr. Justice Brown.' 1 find it well and more strongly stated by Chief Justice Taylor in Kitchin v. Tyson, 7 N. C., 314. “When a statute makes rise of a word, the meaning of which was well ascertained at «common law, the word shall be understood in the same sense it was at common law.” I further concede, as said by the Chief Justice, “that when the provision of a statute is general, it is subject to the control and order of the common law.” Ib. With this concession I submit that, neither in England, prior to the separation of the Colony and the organization of the State, nor in North Carolina, since its existence as a State, can it be shown by judicial decision that a husband was not indictable for a “wanton and malicious” injury to his wife. It is true, those Avho builded the common law were rude of speech and not so gallant of manner as their Norman neighbors, but they abhorred fraud, covin and malice, and punished with severity crimes prompted by either. The only offense against the wife, by the husband, in regard to which authority in the old books on criminal law is found, is an assault. It is sought, by analogy, to hold that, if the husband was. not indictable 'for a simple assault, he should not be for a malicious slander of his wife. This is a large conclusion to draw from so small a premise— but the premise itself is not sound. Mr. Justice Reads, in State v. Rhodes, 61 N. C., 453, traces the history of the common law, in that respect, from Blaekstonc’s statement “that the husband, by the old law, might give the wife moderate correction, for, as he was to answer for her behavior, he ought to have the power to control her, but' that, in the polite reign of Charles the Second, this power of correction began to be doubted.” I Bile., 444. The learned Justice, after noticing the trend of thought and the authorities on the subject, con-*503eludes: “The old law of moderate correction has been questioned even in England and has been repudiated in Ireland and Scotland.” Whatever doubt was left by the decision of that case, as to the common law in North Carolina, was removed by the unanimous decision in State v. Oliver, 70 N. C., 60 (1874), wherein it was declared that a husband had no right to whip his wife, without regard to the animus, weapon used, or injury inflicted. This was, therefore, the common law in.this State when, in 1879, the Legislature enacted the statute declaring that: “If any person,” etc., and that: “Every person so offending,” etc. It is undoubtedly true that when we seek to know the common law, we go to the “storehouse of reason and good sense” found in the writings of the sages of the law in England; “but since courts have had existence in America, they have never hesitated to take upon themselves the .responsibility of saying what is the common law, notwithstanding current English decisions.” Sayward v. Carlson, 1 Wash., 29; Livingston v. Jefferson, 1 Brock, 203, by Marshall, C. J. This must be true, otherwise, “as society becomes more complex and new demands are made upon the law by reason of new circumstances,” the courts would find themselves unable to give expression to the sense of right and justice in private law, or the public safety and welfare in public law/ until the English courts saw fit to change their decisions or the State Legislature to make new statutes. While judges diligently seek to find the law and the reasons upon which it is founded, by reference to the decisions of other courts and the conclusions drawn by commentators, yet, in a certain sense, each State has a common law of its own, based upon the conditions and necessities of its own people. In so far as it can be done, it is desirable to have the common law of the American States uniform, and to that end the judges consult the opinions of the courts of other States, giving to them such weight as, in their opinion, they are entitled, as persuasive or convincing *504as to wbat the law is. In tbis way “the law works itself pure.” Conceding that we must look to the common law to ascertain whether the Legislature of this State in 1879 intended, when it used the words “any person,” to exclude husbands charged with slandering their wives, we find that, by that rule of construction, a husband was indictable for an assault upon his wife whether malicious or otherwise. To write into the statute making a malicious slander indictable, an exception in favor of the husband, when for a simple assault he was indictable, would be, I submit, doing violence to the rule of construction invoked by the defendant and the plain language of the statute. I do not think it within our province or power to write the exception into the statute, because, in our opinion, public policy would be thereby promoted. This would be to invade the province of the Legislature. While I hold, as a cardinal and essential truth in our system of'government, that it is the imperative duty of the Court to declare invalid any statute which does not conform to the supreme law, I hold with equal tenacity that the Court has no power to change the written law when within constitutional-limitations, or to listen to persuasive suggestions ■ of public policy or general good, when invited to construe statutes, the meaning of which is so plain that he who runs may read. To do this produces confusion, and destroys the symmetry of our constitutional system of government. If, however, I were permitted to enter into this field of thought, I should reach conclusions essentially different from those of Mr. Justice Brown. To my mind, the decision produces a singular anomaly in our jurisprudence. . The husband may, with impunity, maliciously slander his wife, but if he lay the weight of his hand lipón her in anger, he is indictable. I submit that this is not the “perfection of human reason,” nor is it in accord with the intelligent sentiment of our people, in the light of the civilization of the twentieth century. It is not claimed that any Legislature has so declared otherwise than by judicial con*505struction. But we are eonfrouted with an express decision of this Court in State v. Edens, 95 N. C., 693, made by judges of great learning, eminent wisdom and large experience, holding that the Legislature did not intend to -include the husband in the statute, and that he was not indictable for violating its provisions when his wife was the person slandered. I freely concede &11 that is so well said by Mr. Justice Brown in regard to the weight to be given the decision of this Court in that ease. I also concede that we should regard it as an authentic declaration of the. intention of the Legislature, unless, upon the most careful consideration, we are fully convinced that such decision is not in accordance with sound principle or-' controlling authority. With the utmost 'respect for the learned judges who decided Edens’ case, I find myself impelled, after most anxious consideration, to conclude that the decision is not in harmony with the express language of the statute or the principle of the common law as declared by this Court. I do not think that the legislation regarding the property rights of married womqn affects the question. I am impressed with the fact that the Chief Justice, in Edens’ case, overlooks Oliver’s case, and says that the husband is indictable for an assault on his wife only “when the battery is so great and excessive as to put life and limb in peril, or when permanent injury to'the person is inflicted, or when it is prompted by a malicious and wrongful spirit.” (Italics mine.)
While, as we have seen, this is in direct opposition to the decision in Oliver’s case, it would seem a legitimate conclusion to draw, that if the injury done the wife by the husband is “prompted by a malicious and wrongful spirit,” he is indictable, I am unable to see any valid reason for holding that if he assault her person, being prompted by malice, he is liable, whereas, if he assault her character, being prompted by the same malicious and wrongful spirit, he is not so. Certainly her fair name and reputation is as sacred, both to her *506and to the State, as her person. To protect one from the assault t>f the husband and leave the other to his wanton and malicious attack, is consistent with neither her rights nor the welfare of society. The reason upon which the' courts refuse to take cognizance of -trivial disputes between husband and wife, beginning and ending in the privacy of the home, deeming it wiser and more1 conducive to the peace and happiness of families, utterly fails when the husband wantonly and maliciously and with intent to injure her, utters and publishes false and defamatory slanders against her. It is here impossible to “draw the curtain” and conceal from public gaze; the wrong which i» done. This crime is never committed in “domestic privacy.” It is said that to hold the husband amenable to indictment tends to prevent a reconciliation. I submit that to restrain men from committing the-great wrong — giving expression to his malice — will better protect the.sanctity of the home, the peace of the -family, the good name of the wife and children and the welfare of society, than to grant him immunity to do the wrong and trust to the forgiveness of the injured wife for reconciliation. Again, it is not the wife alone who is injured by the malicious slander, but the; State is offended, the public peace is endangered. What is more calculated to produce violence and disturbance 'than to stiff or a husband, whose mind and heart are made the home of malice,'to go abroad slandering ltis innocent wife? It is unnecessary to further pursue the subject. I cannot doubt that the' Legislature intended what it said. and, so thinking, I can find no warrant from any point of view to write an exception into the statute, giving the husband a right to maliciously slander his innocent wife with impunity. It is said that.to so hold puts the wife at a disadvantage, because the statute, Rev., sec. 1635, does not permit her to testify in her own behalf. Obvious answers occur to my mind. We have no right to make exceptions in our statute because the Legislature has not provided what we may think *507an effective inode of proving the crime. It is not within our pi’ovince to say liow the proof shall be made. If the rules of. evidence are defective, it is the duty, and, we doubt not, will be the pleasure of the Legislature to change them. Again, this question is not before us. The defendant demurs to the indictment, hence, for the purpose of passing upon the appeal, we must treat the fact as admitted. In a motion to quash,' or in arrest of judgment based upon the insufficiency of the bill, the only question presented is whether an indictable offense1 is charged.
For the purpose of disposing of this appeal, the substantive elements of the offence are to be taken as admitted. I am of the opinion that'his Honor was in error in quashing the bill. AVhile I do not think that the question decided in. State v. Bell, 136 N. C., 674, is presented here, I deem it proper to say that, having written the opinion in that case, upon further consideration, I do not think that the decision is consistent with, or sustained by, reason or the best considered authorities. It seemed probable that, in view of the peculiar facts of that case and the evident hardship imposed upon the defendant by reason of a misunderstanding of his rights, under ' the contract with his landlord, he was misled by the decision in Neal’s case.'- I do not care to enter into further discussion of that question at this time, and only mention it in deference tó the opinion of Mr. Justice Walher, and because T think frankness makes it proper to say this much. Tt was one of those hard cases which are said to be “the quicksands of the law.” I do not think it should be extended or applied to the wanton and malicious slander with intent to destroy the- reputation of an innocent woman. " .
I have felt impelled to express my views in this, case because of its importance as a step in the development in the common law upon this subject. To the credit of our people, be it said that but few cases have been presented to this Court wherein husbands have been so recreant to the duty which *508they owe to tbeir wives as to come under tbe condemnation of tbe criminal law. Tbe views wbicb I bave expressed, I think, give expression to wbat I conceive to be tbe best enlightened public sentiment, crystalized into law.